By Jean A. Flanagan
MOOREFIELD, W.Va. — The final chapter of a three-year court battle regarding emergency ambulance service in Hardy County has been written.
West Virginia Supreme Court Chief Justice Menis Ketchum wrote the opinion reversing the 22nd Circuit Court’s decision to void the Hardy County Emergency Ambulance Fee, void the purchase of the Baker building and hold Commissioners J. Michael Teets and William “JR” Keplinger personally responsible for the $1.13 million cost of the building.
“In this appeal multiple issues have been raised by three separate petitioners,” Ketchum wrote in the decision. “However, it is necessary for us to address only one disputive issue, i.e. whether W. Va. Code 7-15-18 applies in this case to the exclusion of the Open Government Proceedings Act, W. Va. Code 6-9A-1 and W. Va. Code 7-1-2.”
WV Code 7-15-18 is the Emergency Ambulance Authority Act. Citing code sections, Ketchum said the Emergency Ambulance Act gives “full and complete authority for the provision of emergency service within a county be a county commission.”
Ketchum emphasized the part of WV Code 7-15-18 which reads, “no procedure or proceedings, notices, consents or approvals shall be required in connection with” the Emergency Ambulance Act.
Because the purchase of the building and the imposition of the ambulance fee was done “in connection” with the provisions of emergency ambulance service, notice and/or approval was not necessary.
“Without question, the commission’s imposition of the ambulance fee bears a logical relationship to the commission’s provision of emergency ambulance service,” Ketchum wrote.
“Likewise, the evidence presented in this case establishes that the purchase of the Baker building bears a logical relationship to the provision of the emergency ambulance service.”
Ketchum wrote based on these facts, “a county commission taking action in connection with the Emergency Ambulance Service Act of 1975 is not required to comply with the open meeting and/or notice requirements of the Open Government Proceedings Act.”
Ketchum also wrote that because the Supreme Court found Teets and Keplinger did not violate the Open Government Meetings Act, the court also reverses the additional rulings based on that finding in Circuit Court.
“Specifically, we reverse the circuit court’s order of October 10, 2104, that permanently enjoined the County Commission from conducting future proceedings pertaining to the purchase of the Baker building and the implementation of the Emergency Ambulance Fee; that granted the Hardy County Citizen’s motion for attorney’s fees and expenses and awarded them $112,000 plus interest; and that imposed personal liability upon Commissioners Teets and Keplinger.”
In addition, the Supreme Court reversed the circuit court decision to require Steptoe and Johnson to refund $26,582 in attorneys fees.
With the Supreme Court’s decision reversing the Circuit Court’s decisions, Justices Brent Benjamin and Allen Loughry II both filed briefs consenting in part and dissenting in part to the decision.
Loughry wrote that the Hardy County Commission’s vote against the purchase of the building and the imposition of the fee on July 16, 2013, and the matter’s reconsideration on Aug. 2, 2013, “without proper notice, reek of ‘back-door’ politics” and “offend the very objectives of the Open Government Proceedings Act.
“According, I dissent to the majority’s conclusion that the Commission’s actions concerning the Baker building purchase and the ambulance fee are exempt from the Act.”
Loughry said the issue of whether ambulance service is available in Hardy County is disputed. “Only where ambulance service is ‘not otherwise available’ does the duty of a county commission arguably even arise to provide such services,” Loughry wrote.
Loughry also charged the legislature to amend the Emergency Ambulance Service Act to expressly exempt it from the Open Government Proceedings Act and opined, “the Legislature never intended that a county commission could use EASA to block the sunshine and impose significant financial burdens on a county’s citizenry.”
Justice Benjamin also dissented in the opinion that the Emergency Ambulance Service Act exempts the Hardy County Commission from the notice requirements of the Open Government Proceedings Act.
“Given the repeated and substantial violations of the (OGP) Act, I believe the circuit court acted within its discretion by voiding the commission’s un-noticed actions in connection with the service and by awarding attorney fees to the Hardy County Citizens.,” Benjamin wrote.
“The commission should not have been enjoined, however, from starting over pursuant to properly noticed meetings and the circuit court was without authority to impose personal liability for commission expenditures on the individual commissioners.
Benjamin also agreed with the majority that the fees paid to Steptoe and Johnson should not be refunded.